Software patents are a bad legacy to leave behind

Glyn Moody has an interesting piece on Why Patents are Like Black Holes where he looks at the situation when a large patent holder goes bankrupt - or is about to. His point is that even if a company otherwise can go out of business cleanly, the patents often remain as a piece of "IPR" that can come back and haunt us like a zombie.

As reported, as many as 20 organizations have registered bids for Novell, most (or all) of them private equity firms. While an Oracle or a Cisco might acquire Novell for its maintenance streams and product portfolio, it's unclear that private equity firms will have the same motivation. For at least some of these, there will be serious pressure to sell Novell's assets to the highest bidder, regardless of the consequences to Novell's existing customers or to the wider industry.

What neither of these gentlemen pointed out is that this is exactly what happened also with Sun. It wasn't widely mentioned in public, although Mr Piana does single out patents as his first motivation to help Oracle clear the Sun acquisition. (Personally his fear that Microsoft would be allowed to buy any piece at all of Sun was in my opinion always just completely unrealistic (for the same reasons Oracle was in trouble), but I'm willing to give him a point about patent trolls offering to buy Sun's patents.) Other than that it wasn't spoken about (and journalists reporting on the case were mostly nowhere near the real issues anyway) but also other FOSS personalities who took Oracle's side did mention in private conversations with me that for FOSS in general and Linux in particular, it was absolutely vital to make sure that Sun's Unix and other patents would not fall into the wrong hands.

A personal observation is that it seems that particularly the lawyers of our community subscribed to that way of thought, whereas the "hacker" types like Stallman of FSF, Karsten Gerloff of FSFE, Alan Cox of the Open Rights Group, etc. came out clearly on the side of us where we argued that MySQL should not have been allowed to be acquired by it's main competitor. (I should add that within the MySQL community, essentially old MySQL AB employees and other external contributors, the party lines followed completely different logic than in the broader FOSS community, and patents played no role whatsoever in people's opinions.)

For those active in the process it was also an interesting question why 2 companies whom you would have expected to take a side (even just either side) in such a process remained completely passive: IBM and Red Hat. I have absolutely no information as to their decision making, but I did personally make a connection between the astute legal departments of these companies and the above thinking of making Sun's Unix patents your primary point of concern. I wouldn't be surprised if the origin of the idea of allowing Sun patents to fall into the hands of Oracle would have been the IP lawyers of one of these companies. At the same time I should note that there could be a number of other reasons - for instance it is probably considered as "gentleman-like" that since IBM also bid for Sun, it shouldn't interfere with Oracle wanting to acquire it.

To those who were not closely involved in the process, it is probably important to explain that Oracle held a trump card here and they played it well. In merger regulation the regulator - such as the European Commission - ultimately can only decide to approve or not approve a merger. So in this case, even if the anti-competitive concern was only related to MySQL, it was an all or nothing deal. What commonly happens in such cases is that the acquiring company goes to the regulator and says: "Hey, it's not a big deal, let's sell MySQL to someone else and then you let us buy Sun, ok?" But in this case Oracle did the opposite thing. In public reporting (such as interviews with Oracle's counsel, Mr Thomas Vinje) you can see this as Oracle being very adamant on "unconditional clearance". In off the record conversations, this translates into "if we don't get to keep MySQL, we walk out on the Sun deal altogether". Their justification to "unconditional clearance" would range from "a matter of principle" (since they routinely acquire lots of companies) to accounting related problems if divesting MySQL. Anyway, this was the main leverage Oracle had against all parties in the process, not just those worried about patents, but also Sun customers who were worried about their Sparc hardware or politicians worried about Sun jobs.

(And just so I don't come off sounding as whiny here, the above is my understanding of what happened, and I don't intend to paint Oracle as the bad guy here - I mean at least the above strategy doesn't make them a bad guy. In fact, I kind of admire them for playing their cards to their advantage, even if it had a for me undesirable outcome.)

My personal reaction when I realized the above was that this is a sad state of affairs. People who are generally respected (and for a good reason too) within the FOSS community are now letting the existence of software patents affect their judgment of what should happen to some of our open source projects. (These people, just like Mr Piana in his blog, typically also were worried about Java and OpenOffice, even if those were not up for discussion since there was no anti-trust issue in Oracle owning them, there was a fear within the FOSS community that Oracle would not be committed to keeping the projects open source and this fear was also weighed as pros and cons when people decided to make patents their primary concern.)

I personally always felt it was wrong to essentially trade MySQL as a kind of "collateral damage" just because of Sun's software patents. The GPL embodies a spirit of "live free or die", where we fight software patents, we shouldn't start to make compromises due to them.

So when Novell and others are up for grabs next, I hope the above will give some understanding of what might be going on in the background and depending on what happens, sharing of information and past experiences may even be helpful the next time.

All this being said, I want to emphasize I don't hold a grudge against anyone who did follow the above thinking and took Oracle's side. After all, those software patents exist and as we know patents can be used to create problems against FOSS. I just think it's sad it has come to this. I'm not always a very compromising person - but what do I know, compromises are often a good thing.

Here is something to about. On the MT group for MySQL, I was the only one, who out right refused to take out patents or consider the options around them. If I hadn't? Concepts like dynamic multiple storage interfaces and such would now be patented (about 10 other ideas in total).

There is no such thing a defensive patent. All patents are just loaded guns laying around to be found later by others.

More seriously: Yes, this is precisely one of the conclusions I would draw too.

Given that software patents don't seem to be going away, it is a difficult position to be in. Trying to look away and hope it doesn't hurt you may eventually not work either. At the same time, I don't think what is being done now works very good either - essentially we are just trusting some companies to be friendly, there is nothing to guarantee that for instance Red Hat's patents wouldn't one day be used against open source, if they are bought by a 3rd party. As much as we liked MySQL AB, and even Sun, I think it is time to get real about relying on "friendliness" in the long term. Those loaded guns keep being passed around...

The question is just, what should one do? Possibly there could be something analogous to the GPL for patents, that could create a shelter that is more solid than just relying on a few companies not to turn bad tomorrow.

Btw, when we joined Sun, I think it was Monty Taylor who made a big fuss of the fact that he will refuse to work for a company that files patents based on his work. I remember I reassured him that in previous companies I worked for, it is the "inventor", ie the engineer, who has to do various things to apply for a patent, and companies generally pay out bonuses to engineers to motivate them to do that paperwork. So he was happy to hear that he could simply refuse to play along. ...except when we got the PIA I realized I was wrong. The Sun legal text had a nice clause that you hereby appoint Sun's legal dpt to act as your attorney and they can "helpfully" do the paperwork for you in case you would be "unable" to do so. I don't know if Monty and you guys got exceptions to this language. For me it was not an issue, since I was in Sales I just signed away my soul. Maybe they could patent excellent Sales Engineer tactics, I don't know :-)

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